In a fascinating turn of events, the Fourth Circuit has rejected DOJ's motion to transfer Jose Padilla and vacate its prior opinion. Judge Luttig's 12-page order is worth reading in its entirety, but here's the bottom line:

Because we believe that the transfer of Padilla and the withdrawal of our opinion at the government's request while the Supreme Court is reviewing this court's decision of September 9 would compound what is, in the absence of explanation, at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court, and also because we believe that this case presents an issue of such especial national importance as to warrant final consideration by that court, even if only by denial of further review, we deny both the motion and suggestion. If the natural progression of this significant litigation to conclusion is to be pretermitted at this late date under these circumstances, we believe that decision should be made not by this court but, rather, by the Supreme Court of the United States.

An excerpt from the rest:

Because of their evident gravity, we must believe that the consequences of the actions that the government has taken in this important case over the past several weeks, not only for the public perception of the war on terror but also for the government's credibility before the courts in litigation ancillary to that war, have been carefully considered. But at the same time that we must believe this, we cannot help but believe that those consequences have been underestimated. For, as the government surely must understand, although the various facts it has asserted are not necessarily inconsistent or without basis, its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake --- an impression we would have thought the government could ill afford to leave extant. They have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror --- an impression we would have thought the government likewise could ill afford to leave extant. And these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government's credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be.

Ouch! Strong words, and from a respected Judge that the Justices know well. Thanks to Steve Vladeck for the link (who has additional thoughts, as well).

UPDATE: I changed the second excerpt soon after posting this, as I found a better quote.

This strikes me as rather absurd. Why is it so important the Supreme Court hear this case? The Supreme Court is not a legislature, and cases should not artificially be maintained just because they raise an interesting issue that the Supreme Court arguably should address. This runs counter to the spirit of the prudential standing rules. The case would be mooted if Padilla were transferred, and the court should allow that mooting to occur rather than reaching out to decide this case. Luttig has not read his Bickel ("The Passive Virtues" of judicial inaction).

It is one thing to shoot yourself in the foot. It is another thing to drop a grenade in your pants as the DOJ has done here. There is now no way the Supreme Court can deny cert. They've got to take it up even if they eventually decide it's moot.

I was like Prof. Kerr as I blogged this---every time I thought I'd found the priceless smackdown quote, I kept reading and found one even smackier.

Here's my favorite though:

The indictment of Padilla in Florida, unsealed the same day as announcement of that indictment, made no mention of the acts upon which the government purported to base its military detention of Padilla and upon which we had concluded only several weeks before that the President possessed the authority to detain Padilla, namely, that Padilla had taken up arms against United States forces in Afghanistan and had thereafter entered into this country for the purpose of blowing up buildings in American cities, in continued prosecution of al Qaeda's war of terrorism against the United States.

Would this translate into common parlance as "Thanks for setting us up, you lying bastards"?

And why does this represent such a loss for the DoJ? They tried to avoid having a negative precedent established by this case. Oh well, now there will be a new unenforceable judicial mandate for the executive branch to evade (remember the War Powers Act?).

This opinion makes me think that Judge Luttig thought Hamdi was wrongly decided, as it was. With Rehnquist dead and O'Connor leaving, the ridiculous principle of Hamdi hopefully will be jettisoned and we can return to some basic Constitutional principles.

With that said, if Padilla's convicted (again) hopefully he'll go away for life this time. People who can't cut it in the Maniac Latin Disciples don't deserve second chances with Al-Qaeda. Our urban street gangs are not a farm system for international terrorists.

I suspect this will be overturned by the Supreme Court fairly expediently. While I agree with the substance of Luttig's arguments, he's procedurally incorrect. Even the Supreme Court hears cases and controversies pursuant to Article III. That the decision is vacated and has no binding value on the 4th Circuit is enough to prevent the government from avoiding judicial review, given there is no case or controversy. This, it seems, is judicial activism at its most bizarre.

I'll grant you that if enough justices on the Court wanted to avoid handing the White House its head, that would be the way to duck the case (see Newdow). But in good faith, no way. I'm just curious how Scalia will fall on the procedural issue, given that he telegraphed his view on the merits in Hamdi; he certainly signed onto the procedural gambit in Padilla I.

An absurd decision. The Court is now requiring the executive to hold an American citizen in military custody without charge when the executive has decided it is no longer necessary and when said citizen could be in civil court with the full set of rights that goes with it.

And spare me the lectures on the war on terror from Luttig. It is not his decision about perceptions. If the President wants to change tactics, that is his decision, not Luttig's.

Thank goodness the President didn't nominate this guy to the Supreme Court.

Padilla I was a gift to the administration but they were too arrogant to take the hint. Which is odd, since most everyone else did. The Court has one of the most basic and important civil liberties cases for at least 50 years and it uses it to make a semi-obscure point about habeas procedure? Please. It's obvious that 1)The Court is sensitive to the need to be deferential to the Executive in "war" and 2)It was not very comfortable endorsing the Executive's substantive position in Padilla.

The DOJ eventually realized that they were risking a serious trainwreck in Padilla II but by then they'd let it go too far. The very fact that the Government has attempted to change complaints in mid-review is going to weigh heavily on the Court's mind in evaluating the Government's position, just as it has obviously influenced the Fourth Circuit.

Agreed, TS. I do think it's arguable that a Court with Roberts, and perhaps Alito, on it might punt again. Those two, Thomas, and Kennedy on one side; the Stevens set on the other; and where will Scalia fall?

I can imagine that judges find themselves in the same place as other professionals described in Ignatius' piece today in the WaPo: here.

The question for each is when he/she comes to the realization that the jerry-rigged structure isn't really the sensible way to go, long term. I suspect that the 'little old lady from Switzerland' tipped Judge Green over, and the failure to make any progress on the Uighurs had Judge Robertson close to tipping and the NSA story seems to have sent him over. At the oral argument in Al Odah (the appeal from Green's ruling), even Judges Sentelle and Randolph seemed to think the government was overreaching -- we'll see when their opinion comes out.

"For, as the government surely must understand, although the various facts it has asserted are not necessarily inconsistent or without basis . . . "

I don't think he's saying that he thinks there are inconsistencies, but I suspect that Judge Luttig is very concerned about the allegation that the evidence he relied on was obtained through torture. If history shows this to be so, it taints him and the court.

How is this case "evading review"? Next time it happens, review can be expedited if there is fear the executive is abusing the process. But I think it is stretching very far to infer that the executive branch intends to go hunting for other Padillas, or to transfer Padilla back to military court.

I also doubt very strongly that there is a strong case for a Supreme Court decision because this might happen again. American citizens have been held as enemy combatants very seldom in American history, because it is very bad publicity for the executive. And the executive has traditionally disobeyed wartime decrees from the Supreme Court, because such are incapable of being enforced.

1. Much of the interesting stuff that Luttig says is dicta. Dicta is not binding.
2. The basis of the ruling -- the actual holding -- is dead-wrong! Luttig is dead-wrong on Rule 36. That is a clean procedural issue that will be argued before SCOTUS. If the administration wins on that, all Luttig's dicta (which is a paraphrase of the what the administration's critics have said), is irrelevant.
3. Luttig upholds the 4th Circuit precedent. It is still precedent. The burden to overturn it is on the other side.
4. Padilla is still in military custody because the rationales upon which they are holding him are still sound. See point 3.
4. Luttig gives government lawyers an out. Government lawyers can claim that they did not believe they could convict Padilla on charges that reflected the grounds upon which they held him, or argue that they obtained new information that changed things and -- oops! -- forgot to tell the court.

This is not bad for the administration. This is a bar of gold that has been smothered in feces. All the government has to do is wipe it off and spray it with perfume. Ah!

Again and again, lawyers err by thinking about the war against Jihad as a criminal matter. In this opinion, the judges seem surprised that the criminal charges against Mr. Padilla are different than the original reasons stated by the government to hold the mujahadeen.

Most Americans (and apparently this administration) believe that we are at war against mujahadeen. Not criminals. In a few cases American mujahadeen will also be criminals. But usually not. (Most American Muslims live a relatively clean life and when American Muslims go jihad they usually won't break any law. )

What's wonderful from a political perspective is that the party that strongly supports the Iraqi jihad ("They are the Minutemen" -- Michael Moore, guest of honor at the Democratic Convention 2004) will have to make clear to the American people that they also support the jihad at home.

I agree Jack John. I would also note that the 3-panel opinion clearly upholds the principle, as a principle, that "[T]he President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within," regardless of how incredible the government's factual claims are in any particular case.

I suppose you could make a colorable argument for the CRYER exception, but what the Fourth Circuit said strikes me as quite different:

[W]e would regard the intentional mooting by the government of a case of this import out of concern for Supreme Court consideration not as legitimate justification but as admission of attempted avoidance of review. The government cannot be seen as conducting litigation with the enormous implications of this litigation -- litigation imbued with significant public interest -- in such a way as to select by which forum as between the Supreme Court of the United States and an inferior appellate court it wishes to be bound.

To me, this seems more comparable to the "voluntary cessation" exception to the mootness doctrine: we won't necessarily moot a case &let you off the hook just because you've cleaned up your act since the litigation began. See U.S. v. W.T. Grant (U.S. 1953). This exception is usually applied to conduct of criminal defendants, but in Eerie v. Pap, the SCOTUS applied it against a plaintiff who tried to moot a case as a jurisdiction-stripping device intended to deny the defendant its right to appeal. Maybe that's Luttig's concern, sort of.

I'm somewhat surprised at how cheaply some people are willing to sell off the government's credibility in court (which many of us know is an asset the government frequently uses). On second thought, I guess I am not that surprised ... some people seem willing to believe that anything this government does must be for the best, no matter what it involves.

A22: But I think it is stretching very far to infer that the executive branch intends to go hunting for other Padillas, or to transfer Padilla back to military court.

"Willfully obtuse" is one way to characterize that remark. Cf. Judge Luttig's remarks about the feds' credibility.

Jack John: kindly explain how the 4th Circuit is "dead wrong" on S. Ct. R. 36? Because the version in *my* rulebook says the court "may" authorize the transfer. Which means they "may not" as well. How is the 4th Circuit abusing its discretion here?

Circumstances for repitition doesn't seem to fit, and anyway, that's typically between the parties themselves. Now that Padilla is being tried, it seems unlikely Padilla will come up again under the same issue.

mootness, like other prudential standing rules, is as flexible as the courts want it to be. i would be shocked if the supremes denied cert or dismissed the case as moot. but you never know. scalia is the wildcard here in my view.

I don't think "unlikely" is even remotely applicable here. The government has not said and is not saying that it was wrong to call Padilla an EC. If there is still a war on when it looks like the case against him will go south, they'll transfer him right back to DOD custody.

There's a real problem with the 'if there's still a war on' line though. Looking ahead a year, we all expect the tempo of US military operations in Iraq to be very substantially dismissed, through a combination of withdrawal and Iraqification. And there's no reason to think this won't happen -- it's in our interest, Iran's, and the new Iraqi government's as well. So then the "war" on terror starts to look worldwide like it now looks in Indonesia, Buffalo NY, Yemen, wherever else it's going on: not that much like a war, a whole lot more like the diplomatic/criminal exercise against, say, the drug trade. That puts us into the "unraveling" situation foretold in Hamdi. Is the US, today, at "war" in Pakistan? Clearly not.* Are we even at "war" in Afghanistan any more? Judging my media reports, I think it's quite likely that we aren't.

Now the Admin will never give up calling what we're now doing in Yemen "war," but no one should be surprised to find the courts -- and Congress -- dropping out.

* I suppose some Admin supporters are going to disagree with this. I have a question for you: are we "at war" in Colombia? We call it a 'war on drugs' and provide assistance (both financial and of the intelligence variety) to the government. Have we been "at war" in Colombia for 20 years?

Given the language of the rule, it is clearly discretionary. That leaves open the possibility that the 4th Circuit abused its discretion, but I don't know if there is any relevant case law on the subject that would render this a clear abuse of discretion. So, I'm not sure why Jack John was confident that the 4th Circuit was dead wrong on the law.

I never said that Rule 36 had abused its discretion. I said that Luttig was dead wrong. In other words, what he wrote was clearly erroneous. You can go read what he wrote, and if you still don't understand my argument, referring to the sentence in the Rule 36 paragraph that vexes you, ask a question.

Luttig does not say: I apply Rule 36 in way X instead of way Y (like the concurring opinion appears to). He says, I don't understand what Rule 36 means, so it is vague, and I refuse to even try to interpret it and apply it to this situation. But Rule 36 is not vague, and it either applies or it does not. I think Jack John is simply saying that it is clearly erroneous to render a decision based on a refusal to interpret a law at-issue because one thinks it is vague, when the vagueness of the rule is not at-issue in the case (e.g., for due process reasons).

Discretion permits one to interpret a rule in way X or way Y; it does not permit one to refuse to interpret a rule that is at-issue in the case. I think that has always been true, since the existence of courts.

There is no articulated purpose for this rule, the rule does not specify a standard upon which a requested transfer should be authorized or denied, and it is unclear to us what the applicable standard ought to be or whether the rule even applies in a circumstance such as this. This said, to the extent our authorization is needed, we believe there are two reasons for us to deny the government's motion, as well as its suggestion for vacatur of our opinion.

By giving reasons, he's interpreting the rule as allowing denial of transfer for those reasons.

And what concurring opinion do you refer to? Traxler's "I do not think that Rule 36 is applicable"? Not exactly a model of judicial reasoning, that.

As I said before &Medis has reiterated, Rule 36 leaves it all to the court's discretion.

Jack John apparently has no argument, since I've asked him to explain how Luttig was "dead wrong" and he has no response.

As Anderson implies, Luttig does interpret the rule--he interprets it as giving them the discretion to deny the petition in this case. There is nothing "erroneous" about a court restricting the interpretation and application of a rule to the case at hand, particularly when the rule itself provides no standard. Indeed, I generally think courts are wise not to go too far beyond the facts of the case when interpreting rules like this.

The substantive issue would be whether the 4th Circuit was allowed to consider the factors Luttig cites when exercising its discretion. Again, nothing in the rule itself says such considerations are improper, and I haven't seen anyone cite a case yet to that effect.

There is no articulated purpose for this rule, the rule does not specify a standard upon which a requested transfer should be authorized or denied, and it is unclear to us what the applicable standard ought to be or whether the rule even applies in a circumstance such as this.

1. The rule is vague.
2. Therefore it cannot be applied to this case.
3. Discretion means decide in way X or way Y; but
4. Luttig refuses to apply it at all.
5. That is clearly erroneous.

I think Jack John challenged you to quote the case because the only thing you could quote proves his point.

Ok. I wasn't tracking the Rule 36 argument until now. It's like Federal Question jurisdiction. One party interprets a federal law to mean X, the other interprets it to mean -X; the lack of that conflict, or the inapplicability of the law to the case, means that there is no subject matter jurisdiction. If Luttig says the rule is so vague as to be inapplicable, then why he is rendering a decision on the basis of Rule 36? What he has said with regard to Rule 36 is either clearly erroneous or an advisory opinion/dicta. Either way, it's a procedural issue that will be briefed for oral argument before SCOTUS, because if you win on Rule 36, then the rest all falls away.

Luttig: it is unclear to us what the applicable standard ought to be or whether the rule even applies in a circumstance such as this

Remus's version: 1. The rule is vague. 2. Therefore it cannot be applied to this case.

That is not what Luttig said. Going on from the portion you quoted, he goes on to articulate two reasons for denying the relief requested under Rule 36:

This said, to the extent our authorization is needed [under Rule 36], we believe there are two reasons for us to deny the government's motion

How is that failing to apply the rule?

It's Traxler in his 2-sentence concurrence who says that Rule 36 isn't even applicable. Go argue with him. But Jack John said Luttig was "dead wrong," and he's conspicuously failed to show anything of the kind. Evidently he shot off the cuff and now declines to admit error.